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  • 1. PRACTICE ADVISORY 1 Updated August 25, 2010HOW TO GET JUDICIAL RELIEF UNDER 8 U.S.C. § 1447(b) FOR A STALLED NATURALIZATION APPLICATION By the Legal Action CenterSection 336(b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1447(b),specifically provides for direct judicial review of delays in adjudicating naturalizationapplications by the United States Citizenship and Immigration Services (USCIS). Itgives a district court jurisdiction to intervene in a case where USCIS has failed to make adecision on the naturalization application within 120 days of the applicant’s“examination” by USCIS. Because of extensive delays in naturalization applicationprocessing in recent years – caused in large part by delayed security checks – dozens ofnaturalization applicants have sought federal court review under § 1447(b).Section 1447(b) 2 includes five general elements: 1. USCIS must have failed to make a decision on the naturalization application;1 Copyright (c) 2009, 2010 American Immigration Council. Click here forinformation on reprinting this practice advisory. The Legal Action Center (LAC) thanksLinda Rose for her assistance with the original version of this Practice Advisory. ThisPractice Advisory is intended for lawyers and is not a substitute for independent legaladvice supplied by a lawyer familiar with a client’s case.2 Section 1447(b) reads as follows: If there is a failure to make a determination under [INA] § 335 [8 U.S.C. § 1446] before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States District Court for the District in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions to the Service to determine the matter. 1331 G Street NW, Suite 200 · WASHINGTON, DC 20005 · TEL: 202-507-7500 · FAX: 202-742-5619 www.legalactioncenter.org · clearinghouse@immcouncil.org
  • 2. 2. The delay in decision-making by USCIS must have lasted for at least 120 days after the “examination”; 3. The suit must be filed in the federal district court where the applicant resides; 4. The court then acquires jurisdiction over the naturalization application; and 5. The court may either decide the naturalization application or may remand the case with instructions to USCIS.This practice advisory will outline these basic elements and will discuss litigationconcerning this provision and the issues that have arisen from this litigation. It will alsodiscuss when attorneys fees under the Equal Access to Justice Act are available in §1447(b) suits. 1. USCIS must have failed to make a decision on the naturalization application.As an initial matter, for § 1447(b) to apply, there must be no decision on thenaturalization application. Section 1447(b) is only a remedy for delays in theadjudication of naturalization applications; it does not provide for district court review ofthe denial of a naturalization application. Instead, judicial review of a deniednaturalization application is available under 8 U.S.C. § 1421(c), but only if the applicantfirst files an administrative appeal of the denial. See also 8 C.F.R. § 336.9(d). Theadministrative appeal process is set forth at 8 U.S.C. § 1447; see also 8 C.F.R. § 336.2. 3There is no comparable administrative exhaustion requirement for delayed naturalizationdecisions under § 1447(b). 2. A § 1447(b) action is ripe only after USCIS has failed to make a decision within 120 days of the naturalization “examination.”The statute is very specific in identifying precisely when a naturalization applicant canask the district court to intervene due to agency delay: when the agency fails to make adecision on the application within 120 days after the “date on which the examination isconducted under [§ 1446].” 8 U.S.C. § 1447(b).The meaning of the term “examination” is critical to determining when a § 1447(b) actioncan be brought, since it is only after the “examination” has taken place that the 120 dayperiod begins to run. The majority of courts – including the only courts of appeals todecide the issue – have held that “examination” refers to the initial interview scheduledunder 8 U.S.C. § 1446. See, e.g., Walji v. Gonzales, 500 F.3d 432, 436 and n. 5 (5th Cir.3 Although the statute does not have a deadline for filing a federal court appeal of adenied naturalization application, the regulation attempts to impose a 120 day deadline. 8C.F.R. § 336.9(b). The Tenth Circuit struck down this regulatory deadline, holding thatthe agency did not have the authority to impose restrictions on judicial review. Nagahi v.INS, 219 F.3d 1166 (10th Cir. 2000); see also Acosta v. INS, No. 05-9019, 2006 U.S.Dist. LEXIS 72680 (S.D.N.Y. Oct. 5, 2006) (following Nagahi); Montero v. U.S. DHS,No. 05-5839, 2006 U.S. Dist. LEXIS (E.D.N.Y. Apr. 10, 2006) (same). 2
  • 3. 2007) (citing cases) 4 ; U.S.A. v. Hovsepian, 359 F.3d 1144, 1151 (9th Cir. 2004) (enbanc); Omar v. USA, 552 F. Supp. 2d 713 (M.D. Tenn. 2008); Shendaj v. Dedvukaj, 543F. Supp. 2d 724 (E.D. Mich. 2008); Imran v. Keisler, 516 F.Supp.2d 967 (S.D. Iowa2007); see also 8 C.F.R. § 335.2. These and other courts hold that a § 1447(b) action canbe brought if USCIS has failed to make a decision within 120 days after the initialinterview. In Walji, the Fifth Circuit reached this conclusion based upon the statutorylanguage of § 1447(b) (indicating that the “examination” was a distinct, single event); thestatutory structure (distinguishing between the examination and the investigation of anaturalization application); the agency’s own regulations; and the legislative history of §1447(b). Walji, 500 F.3d at 436-38.A minority of courts hold that the term “examination” encompasses a “process” whichincludes both the interview and the investigation of the application, including securitychecks. See, e.g., Danilov v. Aguirre, 370 F. Supp. 2d 441 (E.D. Va. 2005); Yarovitskiyv. Hansen, No. 07-1174, 2007 U.S. Dist. LEXIS 57734 (N.D. Ohio Aug. 8, 2007);Kassemi v. DHS, No. 06-1010, 2006 U.S. Dist. LEXIS 74516 (D.N.J. Oct. 13, 2005).Under this interpretation, these courts dismissed § 1447(b) suits as premature – eventhough they were filed more than 120 days after the initial interview – because securitychecks were still pending. For additional case cites on both sides of this issue, see theLegal Action Center’s (LAC) Litigation Issue Page on Naturalization AdjudicationDelays, http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/naturalization-adjudication-delays.Sometimes USCIS continues the initial examination on the naturalization application andinstructs the applicant to submit additional evidence. USCIS will then schedule areexamination of the applicant. See 8 C.F.R. § 335.3(b). Even when this happens,however, courts have held that USCIS still must make its decision within 120 days of theinitial examination. See, e.g., Angel v. Ridge, 2005 U.S. Dist. LEXIS 10667 (S.D. Ill.2005) (explicitly finding that the 120-day period ran from date of first interview, not arescheduled interview). The regulations support this interpretation by specificallydifferentiating between an “initial” examination and a “reexamination” following acontinuance. 8 C.F.R. § 335.3(b) (“[T]he reexamination on the continued case shall bescheduled within 120 days of the initial examination”). The regulations then reiterate thatthe decision must be made within 120 days of the “first” examination. See 8 C.F.R. §336.1(a).Obviously, the period between the initial examination and USCIS’ decision is not theonly period of delay in naturalization cases. USCIS often delays in scheduling the initialexamination and also delays in holding a hearing and making a decision after anadministrative appeal. However, by its terms, § 1447(b) is not available to redress thesedelays. See, e.g., Langer v. McElroy, No. 00-2741, 2002 U.S. Dist. LEXIS 123847 (S.D.4 In Walji, the Fifth Circuit interpreted the Fourth Circuit decision Etape v.Chertoff, 497 F.3d 379 (4th Cir. 2007), as implicitly holding that the 120 day periodbegins to run from the date of the initial interview. Thus, Etape arguably can beconstrued as reaching this same result. 3
  • 4. N.Y. Dec. 16, 2002) (no jurisdiction under § 1447(b) where agency delays in acting onthe administrative appeal). Where extensive delays occur at these other stages of theagency’s adjudication, a mandamus action in district court might be appropriate. In amandamus action, however, the sole relief available would be for the court to orderUSCIS to act on the application. Unlike § 1447(b), mandamus does not give the court thejurisdiction to actually decide the application. For more on mandamus actions, includingcitations to naturalization cases, see the LAC’s practice advisories on mandamus,http://www.legalactioncenter.org/practice-advisory-topics; and the LAC’s LitigationIssue Page on Mandamus, http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/mandamus. 3. The naturalization applicant must file the § 1447(b) action in the federal district court for the district in which the applicant resides.Under the specific terms of the statute, a § 1447(b) suit must be filed in federal districtcourt. Unlike an appeal of a removal decision, it is not filed in the court of appeals.Section 1447(b) also specifies that venue is in the district in which the applicant resides.For information on whom to sue and serve, see the LAC’s Practice Advisory on thistopic, http://www.legalactioncenter.org/sites/default/files/lac_pa_040706.pdf. 4. The statute vests jurisdiction over the suit in the district court.Section 1447(b) explicitly gives the district court jurisdiction over the action. There is aquestion, however, as to whether this jurisdiction is exclusive, or whether the agencyretains concurrent jurisdiction over the application. Frequently, after suit is filed under §1447(b), USCIS will adjudicate the naturalization application and file a motion to dismissthe district court proceedings as moot. The agency takes the position that it retainsconcurrent jurisdiction with the district court. Moreover, where the application is deniedby USCIS, it takes the position that, after the § 1447(b) case is dismissed, the applicantmust exhaust the administrative appeal required by statute before seeking federal courtreview of the denial. See 8 U.S.C. § 1421(c); 8 U.S.C. § 1447; 8 C.F.R. § 336.9(d); cf.Chavez v. INS, 844 F. Supp. 1224 (N.D. Ill. 1993) (finding no jurisdiction to reinstate §1447(b) suit where agency denied application following remand; applicant had to exhaustadministrative remedies before seeking judicial review under 8 U.S.C. § 1421(c)).Three courts of appeals and a number of district courts reject USCIS’ position and insteadhold that a district court has exclusive jurisdiction upon the filing of a § 1447(b) actionand that USCIS is without jurisdiction to decide the naturalization application unless thedistrict court remands the case. See, e.g., Bustamante v. Napolitano, 582 F.3d 403 (2dCir. 2009); Etape v. Chertoff, 497 F.3d 379 (4th Cir. 2007); U.S. v. Hovsepian, 359 F.3d1144 (9th Cir. 2004); Taalebinezhaad v. Chertoff, 581 F. Supp. 2d 243 (D. Mass. 2008);Castracani v. Chertoff, 377 F. Supp. 2d 71 (D.D.C. 2005); see also Al Maleki v. Holder,558 F.3d 1200, 1205 n.2 (10th Cir. 2009) (finding it unnecessary to answer the questionbut noting the persuasive reasoning of Hovsepian and Etape). Thus, in the Second,Fourth and Ninth Circuits, a denial of the application by USCIS after the § 1447(b) actionis filed is without force because the agency had no jurisdiction to make the decision. 4
  • 5. Other district courts, however, have agreed with the government, holding that USCIS hasconcurrent jurisdiction with a federal court after a plaintiff files a § 1447(b) action. See,e.g., Hamdan v. Chertoff, No. 07-700, 2008 U.S. Dist. LEXIS 10886 (D.N.M. Dec. 17,2008); Perry v. Gonzales, 472 F. Supp. 2d 623 (D.N.J. 2007); Maki v. Gonzales, 2007U.S. Dist. LEXIS 55588 (C.D. Utah July 30, 2007). After finding that USCIS actedwithin its jurisdiction when it denied a naturalization application despite a pending §1447(b) suit, these courts dismissed the suits as moot.Under Bustamante, Hovsepian and Etape, it is now clear that in cases arising within theSecond, Fourth and Ninth Circuits, USCIS will lose jurisdiction as soon as the applicantfiles a § 1447(b) suit. In these jurisdictions, USCIS cannot deprive a court of jurisdictionby denying the naturalization application. This issue remains an open question in allother circuits at the time of this update. In these other circuits, should USCIS deny yourclient’s application after you have filed for district court review of the case under 8U.S.C. § 1447(b), you can rely on Bustamante, Etape and Hovsepian to argue that thedistrict court should disregard the USCIS decision and instead independently adjudicatethe application. See, e.g., Castracani v. Chertoff, 377 F. Supp. 2d 71 (D.C.D.C. 2005)(adopting Hovsepian). 5Where, after the § 1447(b) action is filed, USCIS indicates that it would approve thenaturalization application, you and the government can submit a joint motion to remandto the district court. The motion may stipulate that, upon remand, USCIS agrees toapprove the naturalization application and the motion may ask for the court to order thisrelief. In this way, USCIS will have jurisdiction when it approves the application.A separate jurisdiction question arises when the naturalization applicant is placed inremoval proceedings – either before or after the § 1447(b) action is filed. At least twocourts of appeals addressed this jurisdiction question, but found it unnecessary to resolvein those cases because both held instead that the district court could not grant relief under§ 1447(b) when removal proceedings were pending. Ajlani v. Chertoff, 545 F.3d 229 (2dCir. 2008); Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir. 2007). In reaching thisconclusion, both courts found that § 1447(b) relief was not available because of therestrictions that 8 U.S.C. § 1429 imposes on naturalizing an applicant in removalproceedings. Ajlani, 545 F.3d at 239 (finding that the “priority afforded removalproceedings by § 1429 limits the courts authority to grant naturalization pursuant to §1421(c) or § 1447(b)”); Saba-Bakare, 507 F.3d. at 340 ("§ 1429 requires that Saba-Bakare wait until the termination of the removal proceeding before either a district courtor the USCIS entertains a question regarding his naturalization application"). In thosecases, both courts of appeals affirmed the dismissal of the § 1447(b) actions because thedistrict courts did not have jurisdiction. 5. The district court may either decide the naturalization application or remand5 The LAC is following this issue. Please contact us atclearinghouse@immcouncil.org if you are litigating in the court of appeals the issue ofwhether a district court has exclusive jurisdiction under § 1447(b). 5
  • 6. to USCIS with instructions.Under § 1447(b), a court may "determine the matter" by granting or denying thenaturalization application, or it may "remand the matter" for a determination by USCIS. 8U.S.C. § 1447(b). Despite the statutory grant of authority to decide the naturalizationapplication, the majority of district courts are reluctant to do so, particularly whensecurity checks are still pending. See, e.g., Hussein v. Gonzales, 474 F. Supp. 2d 1265,1269 (M.D. Fla. 2007).A few district courts have decided naturalization applications under § 1447(b), however.For example, in Taalebinezhaad, 581 F. Supp. 2d 243, 245-46 (D. Mass. 2008), the courtdenied the government’s motion to remand the case to USCIS, instead deciding toadjudicate the naturalization application itself. The court relied in part on the fact thatsecurity checks were no longer pending. In response to the government’s claim that itshould remand the case so that USCIS could bring its expertise to bear, the court notedthat USCIS, as a party to the § 1447(b) case, could present its findings to the court.Taalebinezhaad, 581 F. Supp. 2d at 246 (quoting Etape v. Chertoff, 497 F.3d 379, 387(4th Cir. 2007)). See also Lifshaz v. Gonzales, No. 06-1470, 2007 U.S. Dist. LEXIS28946 (W.D. Wash. April 19, 2007) (considering the governments national securityinterest, but still finding it appropriate to conduct a hearing to avoid further delay);Astafieva v. Gonzales, No, 06-04820, 2007 U.S. Dist. LEXIS 28993 (D. Cal. April 2,2007) (granting petitioners application for naturalization after conducting an in camerahearing); Shalan v. Chertoff, No. 05-10980, 2006 U.S. Dist. LEXIS 253 (D. Mass. Jan. 6,2006) (scheduling a hearing instead of remanding the case to USCIS). 6As noted, district courts have been reluctant to decide the naturalization application whensecurity checks are not complete. However, a number of courts have remanded thesecases with restrictions. For example, one court ordered that the case be held in abeyancefor 60 days for the FBI to complete the name check; if after 60 days the name check wasnot complete, the government would have to show cause why the petitioner should not benaturalized immediately. Aslam v. Gonzales, No. 06-614, 2006 U.S. Dist. LEXIS 91747(W.D. Wash. Dec. 19, 2006).In other cases, the courts have placed time limits on when USCIS must act on anapplication after remand. In Alawieh v. U.S. Attorney General, No. 09-10413, 2009 U.S.Dist. LEXIS 15129 at *5 (E.D. Mich. Feb. 26, 2009), the court imposed a 45 daydeadline for USCIS to decide the naturalization application, noting that an order withouta deadline, “effectively instructs the government to do nothing at all inasmuch as it is notclear when, if ever, the instruction is violated.” See also Hussein v. Gonzales, 474 F.Supp. 2d 1265, 1269 (M.D. Fla. 2007) (ordering USCIS to act on petitioners applicationno later than 54 days from the date of the decision); Alhassan v. Gonzales, No. 06-1571,6 Where the court adjudicates the naturalization under § 1447(b), its review is denovo. See United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc)(comparing judicial review under § 1447(b) to judicial review of a final denial of anaturalization application under 8 U.S.C. § 1421(c)). 6
  • 7. 2006 U.S. Dist. LEXIS 89018, *5-6 (D. Colo. Dec. 7, 2006) (ordering USCIS toadjudicate the application within 60 days of receiving the FBI name check). Courts alsohave imposed time limits on when security checks must be completed. See, e.g., Al-Kudsi v. Gonzales, No. 05-1584, 2006 U.S. Dist. LEXIS 16761 (D. Or. March 22, 2006)(where the attorney general was named as a defendant, court ordered him to instruct FBIto complete name check within 90 days; if not completed by then, USCIS was to treat thefailure as a successfully completed name check and approve the naturalization); Aarda v.United States Citizenship & Immigration Servs., No. 06-1561, 2007 U.S. Dist. LEXIS9244, *2 (D. Minn. Feb. 8, 2007) (instructing defendants to complete all backgroundchecks within 120 days of the courts order). 6. Attorneys fees may be available under EAJA.Several courts have awarded plaintiffs attorneys fees under the Equal Access to JusticeAct (EAJA), 28 U.S.C. § 2412(d)(1)(A), in § 1447(b) cases. Under EAJA, the plaintiffmust establish the following to be eligible for an award of attorneys fees from thegovernment: (1) that the plaintiff is the prevailing party in the matter; (2) that thegovernment failed to show that its position was substantially justified or that specialcircumstances make an award unjust; and (3) that the requested fees and costs arereasonable. 28 U.S.C. § 2412(d)(1)(A). For more information about EAJA, includinginformation on the statutory filing deadlines, see the LAC’s Practice Advisory,Requesting Attorneys Fees Under the Equal Access to Justice Act,http://www.legalactioncenter.org/sites/default/files/EAJA_Fees_04_07_06.pdf; see alsothe LAC’s Litigation Issue Page on Adjudicating Naturalization Delays,http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/naturalization-adjudication-delays.Courts have found that a plaintiff is the prevailing party in § 1447(b) cases if USCIScompletes adjudication of the application after the court remands the matter to USCIS. InAl-Maleki v. Holder, 558 F.3d 1200 (10th Cir. 2009), the court upheld the district courtaward of fees, holding that the plaintiff prevailed under the test in Buckhannon Bd. AndCare Rest Home, Inc. v. W.V. Dep’t of Health and Human Resources, 532 U.S. 598(2001). The Tenth Circuit held that USCIS did not act voluntarily when, pursuant to ajoint motion, the court ordered it to administer the naturalization oath to the applicant bya date certain. See also Alghamdi v. Ridge, No. 05-344, 2006 U.S. Dist. LEXIS 68498(N.D. Fla. Sept. 25, 2006); Osman v. Mukasey, 553 F. Supp. 2d 1252 (2008 W.D. Wash.).Courts also have held that the government failed to demonstrate that its litigation positionor its failure to act on the application – the underlying agency action behind the suit –was substantially justified because it provided no specific reasons for the delay. See e.g.Alghamdi v. Ridge, No. 05-344, 2006 U.S. Dist. LEXIS 68498 (N.D. Fla. Sept. 25, 2006);Irahim v. Chertoff, No. 07-2415, 2009 U.S. Dist. LEXIS 16148 (E.D. Ca. Feb. 9, 2009).Not all courts have awarded EAJA fees in § 1447(b) cases, however. In Aronov v.Napolitano, 562 F.3d 84 (1st Cir. 2009) (en banc), the First Circuit reversed a districtcourt award of fees. The court held that the plaintiff was not the prevailing party in the § 7
  • 8. 1447(b) case because the court’s remand order under the circumstances presented did notsatisfy the necessary “judicial imprimatur” on the favorable resolution of the case, asrequired by Buckhannon. The First Circuit in Aronov also held that the governmentdemonstrated that its actions – the delay in adjudicating the naturalization application –were substantially justified. Aronov, 562 F.3d at 94. 8